MDC wants referendum on Chief Justice Bill

HARARE – Government must conduct a referendum on the proposed Constitution
of Zimbabwe Amendment (No. 1) Bill, and the fate of the proposed
constitutional reform must hinge on the public verdict, an opposition
legislator has told the National Assembly.

Bulawayo South MDC MP Eddie Cross told the second reading of the proposed
bill – which seeks to restore sweeping powers to the president to
singularly appoint the chief justice – that it must be subjected to a
referendum.

Lawmakers are debating the proposed Constitution of Zimbabwe Amendment
(No. 1) Bill, even after President Robert Mugabe’s appointment of Luke
Malaba as chief justice.

“If you want to amend the Constitution like this, let us take it back to
the people,” Cross said.

“Let us have a referendum and if the referendum says yes, then I will go
along with it. But for us to attempt to change the Constitution simply
because the ruling party in this House has a clear two thirds majority and
they can ram this thing through Parliament; over our dead bodies, because
we are going to oppose this at every stage.”

The Bill was first published by Speaker of National Assembly Jacob Mudenda
by notice in a Government Gazette on January 3.

Vice President Emmerson Mnangagwa, in his capacity as Justice, Legal and
Parliamentary Affairs minister, presented the Bill in the National
Assembly, just over 90 days after its gazetting – as required.

Curiously, the clear intent of the Bill is to ensure that its new
procedure for filling vacancies in the post of chief justice would be
applicable to the vacancy that no longer exists – the vacancy that was
imminent when the Bill was drafted and gazetted and later became a reality
when then chief justice, the late Godfrey Chidyausiku retired at the end
of February.

This Bill will amend the Constitution by substituting section 180, which
provides for the appointment of three senior judges – omitting the
Constitution’s existing provision for public interviews and
recommendations from the Judicial Service Commission (JSC), and allowing
Mugabe to disregard advice from the commission.

“The appointment procedure for all judges will remain as it is in the
Constitution before amendment, except for the chief justice, deputy chief
justice and the judge president of the High Court,” the Bill’s memorandum
reads.

“It is proposed by this amendment that these three offices will be
appointed by the president after consultation with the JSC (under the
previous Constitution the appointment of all judges was done in this way,
except for the judge president, who was appointed by the chief justice).

“If the appointment of a chief justice, deputy chief justice or judge
president of the High Court is not consistent with any recommendation made
by the JSC made during the course of the consultation, then the president
will have to inform the Senate of that fact as soon as possible.”

While Mugabe followed the correct constitutional course in appointing
Chief Justice Malaba in accordance with the existing constitutional
procedure, it is not clear if he intends appoint a new deputy chief
justice in terms of same procedure – JSC advertisement, JSC public
interviews and all.

A new Constitution produced by an inter-party parliamentary committee
agreed by Zanu PF and MDC negotiators before a referendum in 2013 curbed
presidential powers by requiring the JSC – a panel of mostly senior judges
and lawyers – to conduct public interviews for the vacant post of chief
justice, reflecting Mugabe’s whittled down authority.

“We spent two years on (public hearings on) this exercise, we consulted
the entire country and then had a referendum in which the great majority
of people voted in support of the new Constitution in its entirety,” Cross
said.

“Now, the first act of the government is to bring forward an amendment
which undermines one of the most fundamental principles of the new
Constitution which is the separation of powers.”

Cross said the constitutional amendment comes at a time government has
amended only four or five pieces of subsidiary legislation to bring them
into line with the current Constitution.

“So, implementation of the new Constitution probably stands at about 5
percent, with 95 percent still to be aligned.”

Kadoma Central Zanu PF MP Fani Phiri said “the president should be given
the power to appoint the judges who follow the ideology which will be
prevailing at that time.”

“We do not need to have a judge who runs for 20 to 30 years and yet he
will be running contrary to the sentiments of the ruling party,” Phiri
said.

“The judge should follow prevailing political situations.

“That is why, when we talk of constitutional amendment, we talk of
two-thirds majority.

“When you have two-thirds majority, it means you are supported by the
people.

“That also empowers you to make whatever constitutional changes you may
want.”